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Toscano v. Kernan

United States District Court, E.D. California

April 17, 2017

BENJAMIN K. TOSCANO, Plaintiff,
v.
SCOTT KERNAN, Defendant.

          ORDER DISMISSING ACTION WITH PREJUDICE FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED (ECF No. 32) ORDER THAT DISMISSAL IS SUBJECT TO 28 U.S.C. § 1915(g) ORDER FOR CLERK TO CLOSE CASE

         I. BACKGROUND

         On September 23, 2016, Benjamin K. Toscano (“Plaintiff”) a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.)

         On December 28, 2016, the Court issued a screening order, dismissing Plaintiff's complaint for failure to state a claim with leave to amend. (ECF No. 22.) The Court explained that Plaintiff failed to raise a valid constitutional challenge to a specific policy or regulation and did not attempt to explain why any such program or policy was unconstitutional. Plaintiff indicated in his original complaint that his current custody status is unsafe, but failed to name individuals or give specific details regarding deliberate indifference to Plaintiff's safety. The Court noted that relevant legal analysis for an Eighth Amendment claim requires Plaintiff to name specific individuals and describe how they were deliberately indifferent to his safety.

         Plaintiff filed his Second Amended Complaint (“SAC”) on March 16, 2017 (ECF No. 32.). Plaintiff generally challenges regulations regarding security threat groups, implemented in 2012, which purports to “monitor affiliates and assist with transition for return to a general population setting.” Plaintiff previously was confined to the Security Housing Unit (“SHU”), but since the passage of 15 U.S.C. § 3378.3, he has been transferred to a different housing unit. Plaintiff appears to wish to be in the SHU indefinitely.

         The SAC (ECF No. 32) is now before the Court for screening pursuant to 28 U.S.C. § 1915A. For the following reasons, the Court dismisses the action with prejudice for failure to state a claim.[1]

         II. SCREENING REQUIREMENT

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious, ” that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that the action or appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

         A complaint is required to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff's allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678. The mere possibility of misconduct falls short of meeting this plausibility standard. Id. While factual allegations are accepted as true, legal conclusions are not. Id. The mere possibility of misconduct falls short of meeting this plausibility standard. Id.

         III. PLAINTIFF'S SECOND AMENDED COMPLAINT

         A. Plaintiff's General Allegations

         In Plaintiff's second amended complaint, he names Scott Kernan, Director of CDC and M. Lujan, Correctional Lieutenant as defendants. Plaintiff requests relief in the form of a declaratory judgment finding that he is in imminent danger and injunctive relief directing the CDCR Director to abandon the STG/SDP programs and remove it from the Title 15, to be returned to non-disciplinary segregation (SHU), criminal and federal investigations, compensatory, punitive and nominal damages, a trial by jury, to be transferred to Corcoran State Prison or New Folsom State Prison SHU, and to have his request for out-of-state transfer to Las Vegas State Prison processed by Defendants. (ECF No. 32.)

         Plaintiff states that his complaint challenges Title 15 § 3378.3, a California law regarding the Security Threat Group (STG)/Step Down Program (SDP), which California Department of Corrections (CDC) implemented on October 18, 2012. This regulation affords validated inmates housed in the SHU a way to transfer from SHU back to the General Population (GP).

         Plaintiff alleges that on January 26, 2016, the United States Northern District Court approved the preliminary agreement in the Ashker v. Governor of the State of California case, in which inmates can no longer be validated (by which he presumably means validated as gang members subject to SHU). Because inmates can no longer be validated indefinitely, Plaintiff alleges that the SDP is obsolete and should be removed from the California regulations.

         Plaintiff alleges that the Departmental Review Board (DRB) did not meet regarding Plaintiff until after the complaint was filed. After the complaint was filed, the DRB met and ultimately sent Plaintiff to the restricted custody general population (RCGP) modified ...


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